Commentary to article 113. Forced removal or illegal removal of human organs or tissues of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Coercion to the removal or illegal removal of human organs or tissues for transplantation or other use, as well as the commission of illegal transactions with respect to human organs and tissues, -      

is punishable by imprisonment for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.      

2. The same act committed by:    

a) in relation to a person who is obviously helpless for the perpetrator;      

b) in relation to a known minor;      

c) in relation to two or more persons,      

d) a group of persons by prior agreement or an organized group;      

e) repeatedly;      

f) with the use of weapons or objects used as weapons;      

g) in relation to a woman who is obviously pregnant for the perpetrator.;      

h) by deception or abuse of trust;      

i) using his official position;      

k) using the material or other dependence of the victim, -    

is punishable by imprisonment for a term of five to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.      

3. The acts provided for in the first or second parts of this Article, which negligently caused the death of the victim or other grave consequences, -      

are punishable by imprisonment for a term of seven to ten years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

     The public danger of the crime in question is due to the fact that progress in medicine and the development of technology leads not only to the emergence of new types of medical services and treatment methods, but also to the possibility of abuse in this area, expressed in unacceptable attempts to save one person at the expense of harming another.      

The object of the crime is human life and health. An object is any organ or tissue. An organ is a part of the body that includes several tissues and forms a separate structural unit that performs specific functions in the body, such as the heart, kidneys, liver, etc. Tissue is a historically formed community of cells and intercellular matter united by the unity of origin, structure, and function.      

In accordance with paragraph 19 of Article 1 of the Law of the Republic of Kazakhstan "On Public Health Protection" dated July 7, 2006, transplantation is understood as the transplantation, engraftment of tissues and organs to another place or into another organism. K090000193_      

Organ or tissue transplantation as a treatment method is a two-pronged operation of the patient and the donor. It should be borne in mind that Article 31 of the said Law of the Republic of Kazakhstan establishes that a donor for organ or tissue transplantation can be a person, a human corpse, or an animal. Human organs can be the subject of commercial transactions. Persons who have committed the forced removal of organs or tissues of another person are subject to criminal liability.      

The objective side of the crime is characterized by coercion to remove or illegally remove human organs or tissues for transplantation or other use, as well as the commission of illegal transactions with respect to human organs and tissues.      

In this case, the method of coercion is violence or the threat of violence - pressure, influence on an individual in order to obtain a donation without the voluntary consent of the victim.      

Physical violence is the infliction of mild (Article 105 of the Criminal Code) or moderate (Article 104 of the Criminal Code) harm to the victim's health. In cases of causing serious harm to health or death to the alleged "donor", the acts are qualified under paragraph "i" of part 2 of Article 103 of the Criminal Code or paragraph "m" of part 2 of Article 96 of the Criminal Code.     

Mental violence is expressed in the threat of causing death or any kind of serious harm to health.      

There is an opinion in the literature that deception can also be a means of coercion. Such a position can be correct only if the deception poses a threat in its content, for example, the person is informed that he has a serious illness, and the possibility of treatment is made conditional on consent to the transplant.      

The crime is considered to be over from the moment of coercion, regardless of whether the victim has been forced to agree to the removal of organs or tissues, regardless of the occurrence of the criminal result, i.e. obtaining or not obtaining the victim's consent to donation.      

The subjective side is characterized by guilt in the form of direct intent, the perpetrator is aware that he is forcing the victim to remove organs or tissues, and desires this. The motive is the desire to help a loved one at the expense of the health of another, as well as for selfish reasons. The purpose is to obtain organs or tissues of the victim for transplantation or other use.      

The subject of the crime is a sane individual who has reached the age of 16.      

Part 2 of Article 113 of the Criminal Code provides for the qualified composition of the crime in question:      

a) in relation to a person who is obviously helpless for the perpetrator. Helplessness means that the victim, due to certain physiological or other reasons (young age, old age, illness, physical disabilities, blindness, deafness, lack of arms, legs, etc.), is unable to effectively resist the offender. In relation to paragraph "a" of Part 2 of Article 113 of the Criminal Code, a state of sleep or severe intoxication, as well as unconsciousness for other reasons, can be attributed. In this case, the helpless state of the victim must be known to the perpetrator.;      

b) in relation to a known minor. According to paragraph "b" of part 2 of Article 113 of the Criminal Code, liability arises if the perpetrator knew that the victim was under the age of 18.;      

c) with respect to two or more persons, the commission of the acts specified in Part 1 with respect to two or more persons means that the perpetrator's intent covers the simultaneous enforcement or illegal removal of organs or tissues for transplantation or other use, as well as the commission of illegal transactions with respect to organs and tissues with respect to two and more persons;      

d) the commission of the acts specified in Part 1 by a group of persons by prior agreement or an organized group – in cases where at least two persons participate in the commission of coercion to remove or illegal removal of human organs or tissues for transplantation or other use, as well as the commission of illegal transactions with respect to human organs and tissues. who have agreed in advance to commit this crime together, or these acts are committed by a stable group of persons (an organized group) who have joined together to commit one or more of these crimes;      

e) repeatedly. Repeated commission of the acts specified in Part 1 implies the commission of two or more of these actions, both against the same person and different persons. At the same time, it must be established that the intention to commit the acts provided for in Part 1 of Article 113 of the Criminal Code arose from the perpetrator again.;      

f) with the use of weapons or objects used as weapons. The use is understood as the actual use of weapons or objects used as weapons for their special purpose to cause harm to human life and health.      

According to According to the Law of the Republic of Kazakhstan dated December 30, 1998 "On State control over the turnover of certain types of weapons", weapons are devices and objects designed to destroy a living or other target, as well as to send signals. Weapons in this paragraph should be understood as both firearms and edged weapons.      

A firearm is a weapon in which a bullet, projectile, or grenade is ejected from the barrel as a result of the energy of a powder or other charge.      

A cold weapon is a weapon in which the means of direct destruction of a target is activated with the help of human muscular strength.      

Other objects used as weapons may include any objects that may cause serious harm to human health.;      

g) in relation to a woman who is obviously pregnant for the perpetrator. To apply this clause, a prerequisite is that the perpetrator is aware of the victim's pregnancy. The awareness of the perpetrator may be based on the victim's external data or her message, or on the basis of familiarization with medical documents. In any case, information about the state of pregnancy must be reliable. A person who did not know about the victim's pregnancy is not criminally liable under this paragraph. It does not matter legally for qualification on this point whether or not the fetus died as a result of an attempt on the life of a pregnant woman.;      

h) by deception or abuse of trust. A necessary condition for bringing a person to justice under this paragraph is to establish the fact of deception or abuse of trust.;      

i) using his official position. The commission of the acts specified in Part 1 by a person using his official position takes place in cases where coercion to remove or illegal removal of human organs or tissues for transplantation or other use, as well as the commission of illegal transactions involving human organs and tissues involves an official. Officials are recognized as persons who permanently, temporarily or by special authority perform the functions of a government representative or perform organizational, administrative or administrative functions in state bodies, local governments, as well as the Armed Forces of the Republic of Kazakhstan, other troops and military formations of the Republic of Kazakhstan.;      

j) using the material or other dependence of the victim. Coercion to the removal or illegal removal of human organs and tissues for transplantation or other use, as well as the commission of illegal transactions with respect to human organs and tissues through the use of material or other dependence of the victim will only be if the perpetrator threatens to commit certain acts or unlawfully commits in relation to materially, in service or otherwise the image of a person dependent on him, which will lead to the removal of human organs and tissues. The victim's financial dependence on the perpetrator or the guilty party may be due in whole or in part to dependence, living in the living space of the perpetrator, or when the improvement or deterioration of the victim's financial situation depends on it, etc. The state of financial dependence may form the relationship of debtor and creditor, heir and testator.      

Part 3 of Article 113 of the Criminal Code establishes responsibility for the acts provided for in parts 1 and 2 of the article in question, which negligently caused the death of the victim or other serious consequences (impairment of bodily functions, disability, etc.).

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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